BYER
v.
SMITH
INCARNATI
v.
SAVAGE
Docket Nos. 71113, 71229, (Calendar Nos. 10, 11).
Supreme Court of Michigan.
Argued April 4, 1984. Argued April 5, 1984. Decided November 19, 1984.Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw) for plaintiff Byer.
Glime, Daoust, Wilds, Rusing & Widlak (by George S. Cabot) for defendant Smith.
Dice, Sweeney, Sullivan, Feikens, Hurbis & Foster, P.C. (by Jack E. VanderMale), for plaintiff Incarnati.
Dickinson, Mourad, Brandt, Hanlon & Becker (by Charles T. McCutcheon, Jr.); Gromek, Bendure & Thomas (by John A. Lydick), of counsel, for defendant Savage.
LEVIN, J.
The no-fault automobile liability act abolishes tort liability for noneconomic loss unless the physical injury is as severe as death, permanent serious disfigurement, or serious impairment *544 of body function.[1] The question presented is whether a person who is seriously impaired in body function may recover damages for pain and suffering and other sequelae of the injury after the impairment is no longer serious. We hold that he may.
In both Byer and Incarnati, the juries were instructed in accordance with the decision of the Court of Appeals in Rusinek v Schultz, Snyder & Steele Lumber Co, 98 Mich. App. 380; 296 NW2d 262 (1980), rev'd in part on other grounds 411 Mich. 502; 309 NW2d 163 (1981), that a plaintiff was entitled to recover noneconomic damages only for the period in which he suffered a serious impairment of body function and that a plaintiff was not entitled to recover damages for a period *545 beyond which he suffered such a serious impairment.
I
The question presented cannot arise where the injury suffered is death or permanent serious disfigurement. One may, however, recover from a serious impairment of body function.
The defendants point to the language of subsection 2(b) of § 3135[2] which states that damages for noneconomic loss are recoverable only "as provided and limited in subsection (1)", stating the "serious impairment" threshold, and argue that the act thus provides in terms that "serious impairment" is a continuing limitation as well as a threshold. The plaintiffs respond that serious impairment is a hurdle not a floor.
Either construction of the act is consistent with the Legislature's purpose of barring any recovery whatsoever for noneconomic loss unless the injury is serious and of relieving the courts of the burden of litigation where the injury is not serious. Once the plaintiff establishes serious impairment, he may maintain an action for noneconomic loss. The tort measure of damages requires the factfinder to make a prediction regarding future damages. There can thus be only one lawsuit and only one assessment of damages. There is not a separate assessment of damages from time to time as in, say, a workers' compensation case based on the claimant's current state of recovery from his injuries. Refusing to allow recovery for sequelae after an injury has ceased to be serious would not reduce the number of lawsuits or the burden of litigation.
Nor do we find the linguistic argument persuasive. *546 "Serious impairment of body function" functions as a limitation if construed as simply a threshold and as not intended to serve a larger purpose.
It is our understanding that the Legislature's purpose in establishing the criteria of death, permanent serious disfigurement, and serious impairment of body function, was simply to weed out from the tort system claims for injuries less severe than the criteria. The Legislature might have gone further, and the serious impairment language could indeed be construed to bring about such a result. But no other state has enacted a continuing limitation of the kind that the defendants contend the Michigan Legislature enacted.
Automobile no-fault acts generally provide that death and serious disfigurement are tort liability thresholds. Many of the acts contain medical expense thresholds. Many require some type of permanent injury.[3] The Uniform Motor Vehicle Accident Reparations Act provides for tort recovery where the noneconomic damages exceed a stated limitation, "but only if the accident causes death, significant permanent injury, serious permanent disfigurement, or more than 6 months of a complete inability of the injured person to work in an occupation". The commentary states that "[t]he thrust of this paragraph is to preserve tort actions for noneconomic detriment only for persons who have suffered very serious injury".[4] (Emphasis added.) The model act proposed by Professors Keeton and O'Connell in their influential work exempted no-fault insureds from tort liability unless either the pain and suffering exceeded $5,000 or *547 other damages exceeded $10,000; the commentary states that "in cases of more severe injury, the tort action is preserved, but the recovery is reduced by these same amounts."[5] (Emphasis added.)
It thus appears that under both model acts, on which the Michigan act was based, the criteria for determining whether a tort action can be maintained seek, as does the Michigan act, to preserve tort liability where the injury is serious or severe. Neither model act and no state act seek to guard against recovery in tort for sequelae suffered after the injury ceases to be serious or severe.
Recognizing the force of the defendant's argument, we believe that while Michigan's unique "serious impairment of body function" terminology could, on that basis, be construed as a continuing limitation, it is more likely that the Legislature had no such larger purpose in mind and did not intend to enact a limitation on tort liability that functions other than, as under the model acts and other state acts, as a threshold.
II
In Incarnati, there is another issue. The trial judge allowed the plaintiff, on the third day of trial, to correct the transcript of a doctor's deposition to change the word "inconsistent" to "consistent". The Court of Appeals held that the error should have been discovered by the plaintiff by reviewing the transcript during the nearly two-year period that intervened between the taking of the deposition and the trial, and that plaintiff's failure to do so constituted a failure to exercise *548 due diligence and, under the court rule,[6] "the transcript mistake should have been deemed waived."[7]
We do not understand the court rule as barring a trial judge from allowing a transcript error to be corrected at anytime, even in those cases where in the exercise of "due diligence" the error might have been earlier discovered. Cf. Detroit Automobile Inter-Ins Exchange v Gavin, 416 Mich. 407; 331 NW2d 418 (1982).
We need not reach the questions whether the judge in the instant case properly allowed the transcript to be corrected after the trial testimony was substantially completed or whether the defendant was prejudiced thereby because the plaintiff in his briefs on appeal and cross-appeal and during oral argument sought a new trial on the basis of the instructional error on serious impairment and did not seek to have the judgment on the jury verdict in plaintiff's favor affirmed if we reject the defendant's appeal. At the new trial, the transcript shall be deemed corrected as ordered by the circuit judge.
III
For the reasons previously stated, the instructions in both Byer and Incarnati were erroneous. The plaintiffs are entitled to new trials at which the erroneous instructions are not repeated. In *549 Byer, the decision of the Court of Appeals is reversed; in Incarnati, the decision of the Court of Appeals is reversed in part and affirmed in part, and the causes are remanded to the trial courts for new trials.
WILLIAMS, C.J., and KAVANAGH, RYAN, BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with LEVIN, J.
NOTES
[1] "(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101(3) and (4) was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer such harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss, and survivor's loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.
"(d) Damages up to $400.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (3)." MCL 500.3135; MSA 24.13135.
[2] See fn 1.
[3] Schermer, Automobile Liability Insurance, §§ 10.01-10.04.
[4] 14 ULA, Uniform Motor Vehicle Accident Reparations Act, § 5(a)(7), pp 64, 68.
[5] Keeton & O'Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance, pp 7, 323. The commentary uses the word "severe" or "severity" to describe the proposed tort liability threshold, pp 441 ff.
[6] "As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the person before whom taken under Rules 306 or 307 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained." GCR 1963, 308.4.
[7] Incarnati v Savage, 122 Mich. App. 12, 16; 329 NW2d 790 (1982).